J & M
J O N E S & M A Y E R
Attorneys at Law
3777 North Harbor Boulevard Fullerton, California 92835
(714) 446-1400 (562) 697-1751 Fax (714) 446-1448
International Association of
Chiefs of Police, Inc.
November 13, 2004
Los Angeles, California
By: Martin J. Mayer
Jones & Mayer
Contents
Fair Labor Standards Act (FLSA)
Political Activity
C(3) versus C(6)
Sexual Harassment Training
Arbitration of Disputes
At-will Employment
Vita, Martin J. Mayer
Fair Labor Standards Act (FLSA)
Most State Associations of Chiefs of Police (SACOPs) are incorporated as non-profit associations pursuant to IRS regulation 501C(6) and are therefore private employers. FLSA obviously applies to both the public as well as private sector and therefore impacts upon employees of such associations. Recent changes in the law have further defined differences between exempt and non-exempt employees. Exempt employees must be in a managerial or administrative role and compensated by an annual salary, as opposed to non-exempt employees who are compensated on an hourly basis.
The mere title of the position is only one factor to be considered in determining whether one is exempt or non-exempt from the FLSA obligation to pay overtime, after the individual exceeds a forty (40) hour work week. Far more important is the nature of the job, whether or not the individual supervisor supervises at least two individuals; whether the individual has the authority to hire and/or fire or has the authority to recommend such action; and whether the individual spends at least fifty (50) percent of his or her time in the overall management in the organization. It is imperative that an employer be able to verify that an exempt employee is, in fact, in that category since FLSA has built in liquidated damages for violations of its rules and regulations.
A mistake committed by an employer, in good faith, calls for a minimum of doubling the amount owed the employee. If it can be shown that the employer knew or should have known it was violating FLSA regulations, the penalty is at least triple damages. Advice and guidance from the associations legal counsel is imperative to attempt to avoid running afoul of this very rigidly enforced act.
Political Activity
Most state associations generate revenue through dues paid by their members as well as, in some cases, from corporate or business contributors, exhibitors at annual conferences, and donations from the general pubic. If an association chooses to be involved in political activity it is imperative that it track the source of revenue in order to be able to prove that it is not utilizing public funds to advocate a political position. In most states, it is prohibited for pubic entities to utilize public funds to advocate for or against a partisan candidate or position. Public funds can be used to educate the public but cannot be utilized to advocate a specific position.
The theory behind such laws is to prevent the public from utilizing monies given to it by members of the public to advocate a position which may in fact be contrary to the wishes of those very same contributors. Case law has held that use of time and equipment is the same as the use of actual public monies. It would be prudent, therefore, if an association is planning on taking a position, pro or con, on a public issue, in an attempt to persuade the public to its position, it should be abundantly clear that no public funds, time, nor equipment was used to assist in the advocacy in that position.
Not too long ago, the League of California Cities was sued by an independent group in the State of California over the Leagues public advocacy, through newspaper and television advertisements, of a particular position which would be beneficial (in the minds of the League of California Cities) to municipalities. The League was successful in defending against the lawsuit because it was able to show that all of the monies used in its public relations campaign came from revenue generated through exhibitors at their annual conference and not through membership dues paid for by the various municipalities who were members of the league.
C(3) versus C(6)
Most State Associations are incorporated as 501C(6) non-profit associations. Frequently the issue arises as to whether it could be incorporated as a 501C(3) association, which would then grant it significant tax benefits. For example, all contributions to a 501C(3) association are tax deductible by the contributor. Another example is that the cost of mailing is reduced significantly for a 501C(3) association as opposed to standard costs of U.S. mail for a C(6) association. The reality is that 501C(3) associations are charitable associations and that rarely, if ever, would fit the definition or purpose of a State Police Chiefs Association. Additionally, a C(3) association cannot participate in political activity nor use its funds for any political activity. Since most SACOPs are actively involved in political activity, the C(3) classification would not be permitted.
It is important, however, to recognize that even as a 501C(6) association there are rules and regulations imposed by the IRS with which each association must comply. The funds generated by a non-profit association can only be used to support the goals and objectives stated in its IRS application. Although an association can accumulate a significant amount in reserves, it must be able to show that the money is being, or will be, utilized to support those specified goals and objectives. Being non-profit does not mean that the association cannot generate revenue beyond expenses, it merely means that the revenue must be utilized for those stated purposes.
It is possible for a 501C(6) organization to sponsor and develop a charitable organization, such as a foundation, which could be classified under the 501C(3) classification. That organization would have to be charitable in nature and would be restricted in the use of its funds to those authorized by the IRS code for example: education, support for widows and/or orphans of officers killed in the line of duty, donations to organizations which help crime victims, etc.
One must always assume that the IRS will knock on its door and conduct an audit. In that way, the fear of such an audit should insure that the revenues are properly identified and properly utilized by either the 501C(3) or 501C(6) organization.
Sexual Harassment Training
California just added to its current requirement to provide sexual harassment training and education to employees. It now will require sexual harassment training and education for all supervisors to be conducted by employers with at least fifty (50) employees. The definition of employer, however, is somewhat unique in that it states it is any person regularly employing fifty or more persons or regularly receiving the services of fifty or more persons providing services pursuant to a contract. As such, if an employer has only one employee but utilizes, pursuant to contract, other entities or organizations where the aggregate of their employees exceeds fifty, the initial employer is considered to fall under the purview of this statute.
The United States Supreme Court in 1998 held that an employer has an affirmative defense to a sexual harassment lawsuit if it can show that (1) it exercised reasonable care to prevent and correct sexual harassment and (2) the employee unreasonably failed to take advantage of such corrective preventive or corrective opportunities. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
It is recognized, by most management legal counsel, that in order to be effective in setting forth the affirmative defense, it is necessary to prove that employees were aware of the procedures and failed to take advantage of them. As such, even though the California law does not require training of all employees (it requires training only of supervisors), it is strongly recommended that employers choose to provide such training to their entire workforce in order to be able to increase the ability of convincing a jury that the employee was aware of and failed to utilize the protections designed to assist one who was being harassed.
It would also be in the employers best interest to educate and train all of its employees on other harassment issues including, but not limiting to, discrimination and retaliation on the basis of race, religion, color, national origin, disability, sexual orientation and age.
Arbitration of Disputes
If an association wishes to reduce the potential for employment related litigation and utilize binding arbitration, certain steps must be implemented.
1. The employment agreement signed by the employer and the employee must reference the fact that all disputes of an employment matter will be submitted to arbitration.
2. The employee handbook must make reference to that fact that employment disputes will be settled by arbitration; and
3. The agreement should be provided to the employee within an explanatory memo setting forth the primary issues in the agreement.
At-Will Employment
Although most state laws establish that employment, in particular in the private sector, is of an at-will nature, it is strongly recommended that it be included in the employment agreement and in the employee handbook. It should indicate that employment is at the will and pleasure of the association and that no procedural due process rights apply.
It is important to note that the at-will status will not protect an employer if the employee claims discrimination, harassment or retaliation based upon one or more of the protected categories set forth by Title VII or individual state law. Even though an employee may serve in an at-will capacity, if the employer is alleged to have removed the individual based upon a protected right, the burden shifts to the employer to prove that it had justifiable non-discriminatory reasons for the actions it took. Therefore, discipline and/or termination of employees, even though serving in an at-will capacity, must be carefully documented.
Vita
Martin J. Mayer
3777 North Harbor Boulevard
Fullerton, California 92835
(714) 446-1400 Telephone
(714) 446-1448 Facsimile
E-mail: mjm@jones-mayer.com
The Law Offices of Jones & Mayer is located in the City of Fullerton. The firm basically limits its practice to representing cities, counties and special districts on a variety of legal issues. Martin Mayer limits his practice to representing cities, counties and the State as legal advisor to their Chiefs of Police or Sheriffs and in that capacity represents approximately seventy agencies throughout the California. In addition, the firm serves as the City Prosecutor for seven municipalities. Prior to establishing his original law firm, Mr. Mayer worked with the League of California Cities for four years as Director of its Criminal Justice Planning Unit.
Martin Mayer received his undergraduate degree from the City University of New York and his law degree from St. Johns University, also located in New York. Mr. Mayer is admitted to practice law in all lower courts in the states of New York and California, the United States Federal Courts, and the United States Supreme Court.
Mr. Mayer lectures extensively on matters involving civil liability and law enforcement on behalf of the California POST Commission, California Peace Officers Association, California State Sheriffs Association, the Department of Justice, and Americans for Effective Law Enforcement. Mr. Mayer was a member of the faculty of California State Polytechnic University, Pomona, Kellogg West, for eight years, teaching in their Executive Development Program for law enforcement managers.
Mr. Mayer serves as Legal Advisor to the California Police Chiefs Association, the California State Sheriffs Association and the California Peace Officers Association. He also served, for 10 years, as the State Chairman of the Police Legal Advisors Committee for the California Peace Officers Association. Mr. Mayer is a graduate of the Sixth FBI National Law Institute at Quantico, Virginia and was the first attorney in private practice to be included in the program. Mr. Mayer also served as a POST certified reserve with the Downey Police Department for approximately nine years. Mr. Mayer also serves as a member of, and legal advisor to, the Advisory Council for the National Law Enforcement and Corrections Technology Center (Western Region) which is funded by the National Institute of Justice and the U.S. Department of Justice.
Published Articles
Utilizing the Departments Legal Counsel at Major Incidents
The Police Chief, Published by IACP, May 1998, Vol. LXV, Number 5
Fair Labor Standards Act & Police Personnel Administration
Journal of California Law Enforcement, Vol. 29, No. 2, 1995
The Police Chief, Published by IACP, April 1997, Vol. LXIV, Number 4
The ADA: Psych Evaluation; Background Investigation; Conditional Offer
of Employment; Grievance Procedure
California Peace Officer, Vol. __, No. _, 1994
ADA: Some Questions & Answers
California Peace Officer, Vol. 13, No. 4, 1993
Americans with Disabilities Act: Some Dos and Donts
Journal of California Law Enforcement, Vol. 26, No.1, 1992
Penal Code Section 618--A Reason for Concern?
Journal of California Law Enforcement, Vol. 24 No. 3, 1990
To Provide or Not to Provide: No Longer a Question for Internal Affairs Investigations
Journal of California Law Enforcement, Vol. 24 No. 4, 1990
The Special Relationship Syndrome
California Peace Officer, December 1989
Officer Involved Shootings: A Procedural and Legal Analysis
Journal of California Law Enforcement, Vol. 23, No. 2, 1989
Representative Speaking Engagements
California Commission on Peace Officers Standards & Training (POST) 1980 - present
Executive Development Program
Police Mid-management Course
County Chiefs and Sheriffs Associations Annual Training Retreats
California Peace Officers Association (CPOA) 1979 - present
Role of the Chief of Police
Discipline and Due Process
Legal Update (2 day session)
Americans With Disabilities Act (ADA)
Americans for Effective Law Enforcement (AELE) 1989 - present
Civil Liability Issues Affecting Law Enforcement
Discipline and Law Enforcement
Labor Relations Information System (LRIS) 1995 - present
Labor Relations and Disciplinary Procedures
International Association of Chiefs of Police (IACP) 1997 - present
Police Psychologist Committee Impact of Psychologists on Law Enforcement
Legal Officers Section Union Impact on Internal Affairs Investigations
California State Sheriffs Association (CSSA) 1990 - present
Legal Update at Annual Conference
California State University at Long Beach,
Department of Criminal Justice 1992 - present
Legal Issues Affecting Internal Affairs Investigations
California Association of Law Enforcement
Background Investigators 1997 - present
Legal Update Impacting Upon Background Investigations
League of California Cities Annual Conference 1998 - present
Chief of police Department Legal Update
City Attorney Department Civilian Review Boards
2004, Jones & Mayer